92 Decision Citation: BVA 92-12910
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 84-21 772 ) DATE
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THE ISSUE
Entitlement to outpatient dental treatment and related
dental appliances by the VA.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Joseph P. Gervasio, Jr., Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a 1983 determination of the
Department of Veterans Affairs (VA) Medical Center (VAMC) in
New York, New York which denied a claim for VA outpatient
dental treatment and related appliances. The veteran served
on active duty from November 1940 to November 1945 and from
August 1948 to March 1968.
The veteran's notice of disagreement was received in April
1983. The statement of the case was furnished in May 1983
and his substantive appeal was received in July 1983. The
case was docketed for appellate consideration in June 1984
and remanded by the Board in a December 1984 decision.
Subsequent to this determination, the veteran's case file
was lost for many years by the local VA office. It was
returned to the Board in October 1991. The case was then
submitted to the veteran's representative for additional
argument on appeal. The veteran's representative, the
Disabled American Veterans, submitted additional argument on
appeal in February 1992.
REMAND
The veteran, apparently in late 1982, filed a claim for VA
outpatient dental treatment. According to his 1983 substan-
tive appeal, he was seeking repair or replacement of
dentures. Following the 1984 remand by the Board, the VAMC
provided a dental examination in early 1985, but none of the
other actions ordered by the Board's remand were
accomplished, and the VAMC has not issued a supplemental
statement of the case as required by law.
The veteran's records were lost for years, and, based on the
documents currently before us, there has been no personal
contact between the veteran and the VA, concerning his claim,
since 1985. In the Board's last remand, it was noted that
the veteran was seeking outpatient dental treatment under
Class I or Class III criteria of 38 C.F.R. § 17.123. In a
1991 statement by the local Disabled American Veterans
representative, it was argued that the veteran had Class II
or Class III eligibility. It is now 1992. Since the
veteran's claim is almost a decade old, since his records
were lost and there has been no VA contact with the veteran
for years, and because there is ambiguity as to the legal
grounds for his claim, the claim should be expeditiously
developed anew.
In accordance with the VA duty to assist the veteran in
developing the facts pertinent to his claim, 38 U.S.C.
§§ 5107, the case is REMANDED for the following actions:
1. The VAMC shall contact both the
veteran and his local Disabled American
Veterans representative, and they should
be asked to precisely state what VA
outpatient dental treatment/appliances is
being claimed and the legal grounds for
the claim (i.e., eligibility classes of
38 C.F.R. 17.123).
2. If the veteran is still claiming VA
outpatient dental treatment/appliances,
the VAMC shall assemble the veteran's VA
dental and medical treatment and adminis-
trative records and these should be
associated with his VA claims folder for
the duration of the appeals process.
3. The VAMC shall then provide another
VA dental examination for the veteran,
identifying all dental abnormalities as
well as all dental conditions in need of
treatment.
4. If the veteran is claiming service
connection for a dental disability, as a
basis for his claim for dental treatment
(e.g., Class I eligibility), the VAMC
should refer this issue, and send all the
veteran's records, to the VA Regional
Office adjudication division, which
should prepare a rating decision on
service connection. All records should
thereafter be returned to the VAMC.
5. If the veteran is claiming he has
dental disorders aggravating his
established service-connected disabilities
(i.e., Class III eligibility), the VAMC
shall refer all records to a VA medical
doctor who should render a professional
determination on this matter.
6. Thereafter, the VAMC should review
the claim for VA outpatient dental
treatment/appliances, considering all
potential eligibility categories. If the
claim is denied, the VAMC shall prepare a
supplemental statement of the case which
should be sent to the veteran and his
Disabled American Veterans representative.
When this action is completed, the veteran and his
representative should be afforded a reasonable opportunity
to respond to the supplemental statement of the case.
Thereafter, this case (including the previously mentioned
assembled records) should be returned to this Board for
further consideration. The appellant need take no action
until he is notified.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
J. F. GOUGH STEPHEN A. JONES
L. W. TOBIN
Under 38 U.S.C. § 7252 (1992), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.